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Friday, 27 January 2012

An anonymous correspondent has pointed the IPKat towards a rather unusual story of barristerial misconduct in today's Daily Telegraph.

It is true that in the IPKat's experience, the gravest impropriety likely to be committed by a barrister is the indiscriminate and unnecessary use of words like "nugatory" (instead of, say, "worthless") [coming from someone whose opening line included "barristerial", that's a bit rich, says Merpel], or an inability to hide their fever of excitement as they advise the miserable client, whose case has just sunk with all hands on board, that "we could make some really interesting law here if we appeal".

Perhaps the big surprise is that the misconduct in question occurred behind the scenes at an IP case (reported on by the IPKat here) colloquially known as Newzbin 1. This was a decision of Mr Justice Kitchin, as he then was, finding in favour of Twentieth Century Fox and against Newzbin Ltd. Newzbin provided access to Fox's films and was held to have authorised acts of copyright infringement, to have communicated copyright works to the public, and so on.

Today's story is foreshadowed in the opening paragraphs of the judgment which alluded to a change of counsel for Newzbin which occurred eight days into the trial. Newzbin was initially represented by Mr David Harris, but it was revealed during trial that Mr Harris, a barrister engaged directly by the defendant company, was in fact the sole owner of the defendant company. Not surprisingly he was compelled to step down once this came to the attention of the Court.

There was more to come, however. During the trial, Mr Harris posted to Twitter (under the alias @Geeklawyer, which was ultimately determined to be his account), and those tweets included slurs and obscenities directed to the opposing counsel and to the plaintiff's firm of solicitors, and also apparently tweets commenting on the merits of his client's (i.e. his own) case, one such tweet being “We are guilty as sin, f--- me they are entirely right”. The IPKat appreciates that the latter tweet may have been ironic but it's not what you expect from your own barrister nonetheless.

Freddy only skimmed Mr Kitchin's judgment and was
therefore terribly disappointed when he found
that he couldn't access free movies by visiting the New Bin

Ever an innocent soul, the IPKat needed Merpel to patiently explain to him what was meant by the enigmatic abbreviation "f---" in this context. Merpel obliged him with her characteristic gusto, and reeling from the shock, the IPKat has decided against quoting any of Mr Harris's other tweets, even in redacted form.

Mr Harris was brought before the Bar Standards Board, charged with professional misconduct. Apart from the nature and content of the tweets, the conduct complained of related to his actions in acting for a company in which he had a financial interest, and in a case in which there was a good likelihood he would be called as witness.

Neville Nagler OBE, the chairman of the Bar Standards Board, said that it was clear that the tweets had been sent by Harris and that he had brought the profession into disrepute, both in relation to the content of the tweets (which he labelled as "disgraceful") and on a professional level in acting as counsel for his own company. Mr Harris was therefore disbarred, fined £2,500 and ordered to pay costs.

The IPKat feels that it is superfluous - and possibly even nugatory - to comment on the lessons to be learned from this rather bizarre episode, and is confident that his learned friends know far better.

Very interesting and all, but where is the problem here? It's his company, he represents himself and he makes silly tweets, but presumably this wasn't a jury trial so how would it change the outcome of the trial? And who spotted the tweets in the first place?

I've heard prlenty of comments from IP barristers disparaging the opponents, their witnesses and employees. Providing justice is done let him tweet away!

I've followed @Geeklawyer on twitter for a long time, and found his tweets to be rather similar in character to those of @samuelpepys (a historcial account that posts diary excerpts in realtime, but with a 342 year delay) - the bawdy, ribald and at times exaggerated musings of a wealthy Londoner.

While they may well have brought @Geeklawyer himself into disrepute, it was clear to me that either @Geeklawyer was a fictional character only loosely based on real life, or that he was wholly unrepresentative of the behavior of the rest of the legal profession (and indeed decent human beings in general).

If anything, I feel that @Geeklawyer actually improved the reputation of the legal profession by reassuring the public that some of them possess a sense of humour. Perhaps this verdict indicates that the opposite is true?

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